Master
Sergeant Ronald L. Brewer was charged with using marijuana on divers
occasions over
a one-year period in violation of Article 112a, Uniform Code of
Military
Justice (UCMJ), 10 U.S.C. § 912a (2000). He was tried by a
general
court-martial composed of officer and enlisted members who found him
guilty and
sentenced him to confinement for eighteen months and reduction to pay
grade
E-2. The convening authority approved the sentence but waived
mandatory
forfeitures of pay for the benefit of Brewer’s dependent son. The
United
States Air Force Court of Criminal Appeals affirmed the findings and
sentence
in an unpublished opinion on April
28, 2004. United States v.
Brewer, No.ACM 34936, 2004 CCA Lexis
136, at *24
(A.F. Ct. Crim. App. Apr. 28, 2004).

Brewer was
convicted based upon positive results for marijuana from a urinalysis
test and
a hair analysis test. The Government relied on the permissive
inference
that Brewer’s use of marijuana was “wrongful” in order to meet that
element of
the drug charge. Brewer sought to counter that inference by
presenting
evidence of innocent ingestion. The military judge excluded
testimony
from witnesses who had frequently observed Brewer during the one-year
time
period. The military judge also gave the members an instruction
regarding
the burdens of proof for the permissive inference that Brewer argues
created a
mandatory rebuttable presumption.

We
granted review
to determine whether Brewer was wrongly denied the opportunity to
counter the
permissive inference of wrongful use relied upon by the Government and
whether
the military judge’s instruction regarding that permissive inference
was
erroneous.1
We conclude that the errors
in this case violated Brewer’s rights under the Due Process Clause and
were not
harmless beyond a reasonable doubt. We therefore reverse the
decision of
the United States Air Force Court of Criminal Appeals.

BACKGROUND

The
Government’s
case against Brewer was based upon two positive drug test
results. The
first was a urinalysis test on a sample obtained after Brewer was
randomly
selected to be drug tested. After that sample tested positive for
marijuana the Government obtained a search authorization to test a hair
sample
from Brewer and that test also returned a positive result for marijuana
use. Based on the hair analysis, a Government expert witness
testified
that Brewer “had ingested [marijuana] on multiple occasions in the time
period.
. . .” In that witness’ opinion Brewer had used marijuana at
least thirty
times in the twelve months preceding the hair test.

In
addition to the
test results, to meet the element of the charge that requires that use
of a
controlled substance be “wrongful,” the Government relied “‘on a
permissive
inference of wrongfulness which has long been recognized by military
law as
flowing from proof of the predicate fact of use of’ the drug.” United
States v. Ford, 23 M.J. 331, 333 (C.M.A. 1987) (quoting United
States v.
Harper, 22 M.J. 157, 162 (C.M.A. 1986)). To counter this
inference,
and in order to mount a defense of innocent ingestion, Brewer soughtto introduce the
testimony of
five witnesses “who were with [Brewer] and observed his behavior for
much of
the relevant time frame and that [sic] if the accused had used
marijuana they
would likely have seen some evidence of it.”

The
Government
made a motion in limine to exclude the testimony of these
witnesses. In
support of its motion, the Government argued that it was introducing
only
urinalysis and hair analysis test results and would not be presenting
evidence
that Brewer used drugs at any specific time. Because of this, the
Government contended that the only evidence the defense could offer in
rebuttal
would be the testimony of someone who had been with Brewer for the
entire
one-year time period. The Government argued that witness
testimony
concerning only certain, limited time frames during which that witness
had been
with Brewer was not relevant and/or was confusing under Military Rules
of
Evidence (M.R.E.) 401 and 403.

Trial
defense counsel responded that presenting the testimony of witnesses
who knew
the accused well and who were with him for a substantial period of the
charged
time frame is one of the ways for the defense to respond to the
generalized
allegations by the Government. Defense counsel noted that it
would be
impossible to find one witness who had been with Brewer for the entire
time
period, but stated, “What we are trying to do is build our wall of
proof one
brick at a time.” The defense offered testimony from Brewer’s
live-in
girlfriend, a close friend, his direct supervisor, and two people who
worked
directly with him during the workday to show that none of these people
ever saw
any evidence of drug use by Brewer. The defense contended that
the
testimony of all of these people together goes to make a “wall of proof
that
raises reasonable doubt.”

The
military judge
granted the Government’s motion to exclude the testimony with regard to
all of
the witnesses except Brewer’s live-in girlfriend. At the close of
the
prosecution’s case trial defense counsel made a motion for
reconsideration of
that ruling but the military judge denied the motion. Brewer’s
girlfriend
testified that she and Brewer were strict and would not allow marijuana
to be
smoked in their house. She also testified that she had not seen
anything
to indicate that Brewer smoked marijuana. A friend of Brewer’s
nephew
also testified, stating that he and Brewer’s nephew had often smoked
marijuana
in the house without Brewer’s knowledge and that they had once made
spaghetti
sauce that contained marijuana and left it on the stove.

At
the close of
the evidence and prior to deliberations, the military judge instructed
the
members concerning the permissive inference of wrongful use of drugs
utilizing
an instruction taken almost verbatim from the Military Judges’
Benchbook.
See Legal Services, Dep’t of Army, Pamphlet 27-9, Military
Judges’
Benchbook ch. 3, 3-37-2d (2001) [hereinafter Benchbook].
There
was no objection to this instruction at trial.

DISCUSSION

1. Did
the
Military Judge Err in Excluding the Four Defense Witnesses?

Brewer
contends
that the military judge erred in granting the Government’s motion to
exclude
the defense witnesses because those witnesses were necessary to counter
the
permissive inference of wrongful use upon which the Government was
allowed to
rely. The Government responds that the military judge properly
excluded
the testimony of the witnesses offered by Brewer because these
witnesses were
improper alibi and character witnesses and their testimony therefore
was
inadmissible and was irrelevant to the proceedings. We review a
military
judge’s decision to admit or exclude evidence for abuse of
discretion. SeeUnited States
v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995).

Brewer
argues that
these witnesses would have testified that they “were with [Brewer] and
observed
his behavior for much of the relevant time frame and that [sic] if the
accused
had used marijuana they would likely have seen some evidence of
it.” The
military judge excluded the testimony because he found it not
relevant.
The lower court affirmed, noting that these witnesses could not
properly serve
as alibi witnesses because Brewer did not dispute that the drug entered
his
system and therefore could not properly claim that he had an alibi for
the
offense. The lower court further held that Brewer was improperly
attempting to present testimony regarding specific instances of conduct
as
character evidence, when such evidence is limited to reputation or
opinion
testimony under M.R.E. 405(a).

We agree
with the lower court that this evidence is not admissible as character
evidence
under M.R.E. 404 and 405. In United States v. Schelkle,
47 M.J.
110 (C.A.A.F. 1997), the defense argued that evidence of specific
instances of
conduct (statements in letters by friends of the accused that they had
not seen
him use marijuana) should be admissible under M.R.E. 405(b) because
evidence of
“good military character” is an essential element of a defense to
charges of
drug use. In rejecting this argument this court found that
character was
not an essential element of the defense in that case and that evidence
of
character therefore was limited to reputation and opinion
evidence. Id.
at 112; see also M.R.E. 405(b).

Because
character
is not an essential element of any defense raised by Brewer, we reach
the same
result in this case. Testimony of these witnesses was not
admissible
under M.R.E. 405(b). Schelkle did not, however, hold that
this
testimony could never be admitted and we therefore turn to the question
of
whether this type of testimony may be admissible on other grounds.

It
is important to
note that the Government was permitted to prove an essential element of
its
case -– that Brewer’s use of a controlled substance was wrongful -– by
relying
“‘on a permissive inference of wrongfulness, which has long been
recognized by
military law as flowing from proof of the predicate fact of use of’ the
drug.” Ford, 23 M.J. at 333 (quoting Harper, 22
M.J. at
162). To counter this inference, Brewer relied on a defense of
“innocent
ingestion” based in part on the fact that his nephew and his nephew’s
friend
often smoked marijuana in his house and on one occasion put marijuana
in some
spaghetti sauce at the house.

In Ford,
we
discussed the permissive inference and its relationship to defense
evidence of
innocent ingestion. In that case the Government’s evidence
consisted of a
positive urinalysis result and testimony by an expert concerning that
result. The defense presented testimony from “several witnesses
who
testified that they observed no abnormalities in his behavior
suggesting drug
abuse.” Id. at 332. There also was evidence that the
defendant’s
ex-wife had access to marijuana and a motive to frame the
defendant. Id.
The defense argued that presenting this evidence of innocent ingestion
negated
the Government’s ability to rely on the permissive inference to prove
knowing
ingestion, or that in the alternative it required the Government to
present
additional evidence of wrongful use. Id. at
333-37.

This
court
disagreed with these defense contentions, noting that witness testimony
that
the defendant did not exhibit behavior indicative of drug use:

challenges
the basis in fact upon which the inference of wrongfulness is
predicated. . .
. It was offered by the defense to create a reasonable doubt in
the
factfinders’ minds concerning the prosecution’s circumstantial proof of
use. A conflict in evidence concerning the existence of the
predicate
fact, however, does not bar use of the inference. It simply means
that
the members must resolve the question before they decide whether the
inference
should be drawn in the present case.

Id.
at 335-36 (internal citations omitted).

While Ford
did not specifically address the issue presented in this case, it does
demonstrate that this court has recognized the potential relevance of
the type
of testimony offered by Brewer. “‘Relevant evidence’ means
evidence
having any tendency to make the existence of any fact that is of
consequence to
the determination of the action more probable or less probable than it
would be
without the evidence.” M.R.E. 401.
Testimony from people who spent substantial time with Brewer throughout
the
charged period that they had not seen him purposefully use drugs or
observed
him under the influence of drugs does go to the issue of whether he
knowingly
and wrongfully used drugs at least thirty times during the charged
period. Contrary to the assertions of the dissent, we believe
that if the
members found this testimony credible, it would have bolstered Brewer’s
innocent ingestion defense.

The
dissent is
incorrect in arguing that only testimony of those who had observed
Brewer in
his home would be relevant to his defense. Brewer did not claim
the
ingestion occurred at his house as the dissent states, but rather
offered the
possibility that his ingestion may have occurred in his home where his
nephew
had used the drug to explain his positive urinalysis result. The
very
nature of an innocent ingestion defense means that Brewer could not
prove the
time or place of his innocent ingestion, but could only suggest
possible
explanations. Part of a defense of innocent ingestion requires
raising
doubt in the minds of the members that the presence of a drug in
Brewer’s
system came from a knowing and wrongful use of the drug. The
testimony of
the witnesses offered by Brewer provides grounds for the members to
question
whether to draw the inference that Brewer’s use of marijuana was
wrongful,
thereby raising a question as to an essential element of the charged
offense.

We
find no merit
in the Government’s contention that the relevance of this testimony is
diminished because the Government has not alleged a specific time of
use.
The Government’s charge spans a one-year time frame and alleges that
Brewer
used marijuana multiple times during that period. The Government
does not
offer specific dates or times of use because the test results upon
which it
relies do not provide that level of specificity. In response,
Brewer
offers evidence that also spans that one-year period and goes to show
that he
was not seen using drugs by those who saw him frequently during that
time
period.

Under
these
circumstances it is not unreasonable for the Government to charge a
one-year
period, but the lack of specificity should not provide a basis to
prohibit
Brewer from challenging the facts giving rise to the permissive
inference
relied upon by the Government. The use of a permissive inference
of
wrongful use by the Government requires that a court allow a defendant
some
leeway to rebut that inference by using testimony such as that
proffered by
Brewer in this case. The military judge, of course, retains the
power to
limit repetitive testimony under M.R.E. 403.

Because
the
military judge in this case precluded testimony from four witnesses who
observed Brewer outside his home during this period, that ruling denied
Brewer
the opportunity to present a line of defense on the element of wrongful
use and
violated Brewer’s due process right to present witnesses in his own
defense. SeeChambers v. Mississippi, 410 U.S.
284, 302 (1973) (“Few rights are more fundamental than that of an
accused to
present witnesses in his own defense.”). We therefore find that
the
military judge abused his discretion.

2.
Was the Military Judge’s
Instruction to the Members
on the Permissive Inference of Wrongful Use Plain Error?

Brewer
argues that
the military judge’s instruction to the members violated the Due
Process Clause
because it may have caused a reasonable member to believe that there
was a
mandatory presumption of wrongfulness, rather than a permissible
inference. The Government argues that the military judge’s
instruction to
the members was not erroneous because it was a correct statement of the
law. At the close of the evidence, and prior to deliberations,
the
military judge instructed the members concerning the permissive
inference of
wrongful use as follows:

To be punishable
under Article 112a, use of a controlled substance must be
wrongful. Use
of a controlled substance is wrongful if it is without legal
justification or
authorization.

Use of a
controlled
substance is not wrongful if such act or acts are: (a) done pursuant to
legitimate law enforcement activities (for example, an informant who is
forced
to use drugs as part of an undercover operation to keep from being
discovered
is not guilty of wrongful use); (b) done by authorized personnel in the
performance of medical duties or experiments; or (c) done without
knowledge of
the contraband nature of the substance (for example, a person who uses
marijuana,
but actually believes it to be a lawful cigarette or cigar, is not
guilty of
wrongful use of marijuana).

Use of a
controlled
substance may be inferred to be wrongful in the absence of evidence to
the
contrary. However, the drawing of this inference is not required.

The burden of
going
forward with evidence with respect to any such exception in any
court-martial
shall be upon the person claiming its benefit.

If such an issue
is
raised by the evidence presented, then the burden is on the United
States to establish that the use was
wrongful.

Knowledge by the
accused of the presence of the substance and knowledge of its
contraband nature
may be inferred from the surrounding circumstances. However, the
drawing
of the inference is not required.

Following
a number of other instructions, the military judge provided the
following
general instruction: “the burden of proof to establish the guilt of the
accused
beyond a reasonable doubt is on the government. The burden never
shifts
to the accused to establish innocence or to disprove the facts
necessary to
establish each element of the offense.”

As
there was no
objection to the permissive inference instruction at trial, we will
provide
relief only if we find plain error. SeeUnited
States v. Simpson, 58 M.J. 368, 378 (C.A.A.F. 2003). To meet
the test for
plain error Brewer must show that there was error, the error was plain
or
obvious, and the error materially prejudiced his substantial
rights. United Statesv.
Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998). If Brewer meets this test, the burden shifts
to the
Government to show that the error was harmless beyond a reasonable
doubt.
SeeUnited States
v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005).
The court reviews these questions de novo. Simpson, 58 M.J. at 378.

To
determine
whether there was error, we ask whether a reasonable member could have
interpreted the instruction to create a mandatory presumption of
wrongfulness
in favor of the Government. SeeSandstrom v. Montana,
442
U.S. 510, 514 (1979) (“That determination [of the nature of the
presumption
created by the instruction to the jury] requires careful attention to
the words
actually spoken to the jury . . . for whether a defendant has been
accorded his
constitutional rights depends upon the way in which a reasonable juror
could
have interpreted the instruction.”).

The
instruction
begins by explaining that the drug use must be wrongful. It then
identifies three situations in which use of a controlled substance is
not
wrongful. It next states that members may infer wrongfulness if
there is
no evidence that it is not wrongful, but that they are not required to
do
so. Then, it tells the members that the burden of going forward
with
evidence of any of the exceptions is on the person claiming the benefit
of the
exception. Finally, the instruction states that if “such an issue
is
raised by the evidence presented, then the
burden of
proof is upon the United States
to establish that the use was wrongful.”

The
instruction is
confusing because it does not explain the difference between “a burden
of
production, which only requires that an issue as to an exception be
raised by
the evidence, and a burden of persuasion, which would require an
accused to
affirmatively prove by some standard of proof that he came within the
exception.” United
States
v.
Cuffee, 10 M.J. 381, 382-83 (C.M.A. 1981). Without
such an
explanation, a member may believe that it is the defendant’s
responsibility to
prove that one of the exceptions applies, rather than simply to raise
the issue
by presenting some evidence to that effect. Further, and even
more
troubling, a member may believe that it is not until one of the
exceptions has
been proven by the defendant that the burden shifts back to the
Government to
show wrongful use.

The
military
judge’s later instruction that “[t]he burden never shifts to the
accused to
establish innocence or to disprove the facts necessary to establish
each
element of the offense” does not alleviate this confusion. The
permissive
inference instruction clearly placed some burden on the
defendant. As the
“burden” in the later instruction refers to both a burden of production
and a
burden of persuasion, it does not clarify the nature of the burden
referenced
in the earlier instruction. As a result, the instructions as a
whole
could still confuse a reasonable member.
Adding to the confusion caused by the failure to
explain the
respective burdens on the parties is the use of the word
“exception.” To
categorize the three circumstances that make a use not wrongful as
exceptions
suggests that unless one of those exceptions is found, wrongfulness
should be
presumed (i.e., they are exceptions to the general rule of
wrongfulness).
Inclusion of the word “exception” creates the possibility that a
reasonable
member could have interpreted the instruction to require a presumption
of
wrongfulness absent evidence to the contrary. Because the
confusing
language of the instruction might have led the members to conclude that
there
was a presumption that Brewer’s use of marijuana was wrongful and/or
that
Brewer had the burden of proving that it was not, we find that the
instruction
was erroneous.

Next
we ask
whether the error was plain or obvious. The Government argues
that there
was no obvious error because the instruction was a correct statement of
the law
and was taken almost verbatim from the Benchbook.
However, despite
inclusion of this language in the Benchbook, the military judge
was
still under an obligation to evaluate the instruction and to determine
its
applicability to the case at hand. The Benchbook itself
states
that the instructions should be given “only if the subject matter of
the note
applies to the facts and circumstances of that case.” Benchbook
at ch. 1, ¶ 1-3(b). Otherwise, notes and the accompanying
instructions “are intended to explain the applicability of the
instruction
generally, or to alert the trial judge to optional elements or unusual
applications of the instruction.” Id.

Under
the
permissive inference instruction given in this case, it would be
difficult for
a lay person to grasp the subtle distinction between a permissive
inference and
a rebuttable presumption, or to know the difference between a burden of
proof
and a burden of persuasion. Because the potential for confusion
of these
terms is obvious in a case such as this one, the need for more
carefully
crafted language and for further explanation of this language is
obvious as
well. SeeUnited States v. Curry, 38 M.J. 77, 81
(C.M.A.
1993) (“Even if we, as lawyers, can sift through the instructions and
deduce
what the judge must have meant, the factfinders were not lawyers and
cannot be
presumed to correctly resurrect the law.”). Even though the
instruction
was taken from the Benchbook, it was clearly erroneous under
the
particular circumstances of this case and therefore obvious error.2

3. Were
the Above
Errors Harmless Beyond a Reasonable Doubt?

In
regard to the
erroneous instruction, after finding obvious error we ask whether this
error
materially prejudiced Brewer’s substantial rights. Powell, 49 M.J. at 463-65. Because in this case we
have a
constitutional error, we must evaluate whether the Government has shown
that
the error was harmless beyond a reasonable doubt. Id. at
465 n.*. With regard to the military judge’s ruling
excluding defense
witnesses, this court has noted that “[b]ecause an accused has the
right to
present witnesses under the Constitution and RCM 703(b),
the Government must show that this error was harmless beyond a
reasonable
doubt.”United
Statesv.
Miller,
47 M.J. 352, 359-60 (C.A.A.F.
1997).We will review both
errors together to determine whether the denial of Brewer’s right to
due
process was nonetheless harmless beyond a reasonable doubt.

Brewer
argues that
neither of the errors was harmless beyond a reasonable doubt because
they
affected his ability to properly defend himself on the element of
wrongful use.
The Government contends that any error
that did occur was harmless because of the extent of the evidence
against
Brewer.

We
find that excluding the four defense witnesses made it impossible for
Brewer to
present his defense that those who saw him most frequently over a
substantial
portion of the charged time frame had not seen him use marijuana,
possess
marijuana paraphernalia, or appear to be under the influence of
marijuana. This line of defense was
relevant to rebut the
inference that his use of marijuana was wrongful. While
the Government is correct that its
evidence was strong to support a finding that Brewer had the marijuana
in his
system, it relied solely on the permissive inference of wrongful use to
meet
that essential element of the charge. Therefore,
the exclusion of these witnesses
was not harmless beyond a reasonable doubt because without their
testimony that
permissive inference was left unchallenged.

This
prejudice was
compounded by the military judge’s confusing and erroneous instruction.
Brewer was not permitted to challenge the inference that his use was
wrongful,
while at the same time reasonable members may have understood the
instruction
to require them to find the use wrongful if Brewer did not make a
sufficient
showing to the contrary. Brewer was left without recourse to
rebut an
essential element of the charge against him, and the Government was
relieved of
its burden to prove that element beyond a reasonable doubt. We
find that
these errors created prejudice to Brewer that is not harmless beyond a
reasonable doubt.

DECISION

The decision
of the United States Air Force Court of Criminal Appeals is reversed.
The
findings and sentence are set aside. The record is returned to
the Judge
Advocate General of the Air Force. A rehearing is authorized.

FOOTNOTES:

1
We granted three issues:

I.

WHETHER THE GOVERNMENT
IMPROPERLY SEVERED THE
APPELLANT'S RELATIONSHIP WITH HIS CONFIDENTIAL DEFENSE EXPERT
CONSULTANT.

II.

WHETHER
THE MILITARY JUDGE ERRED BY REFUSING TO PERMIT THE APPELLANT TO PRESENT
A
MOSAIC OF ALIBI WITNESSES TO COUNTER THE PERMISSIVE INFERENCE UNDER
ARTICLE
112a, UCMJ, CREATING AN ERROR VIOLATIVE OF THE DUE PROCESS CLAUSE.

III.

WHETHER
THE MILITARY JUDGE’S INSTRUCTIONS CREATED A MANDATORY REBUTTABLE
PRESUMPTION IN
VIOLATION OF THE DUE PROCESS CLAUSE THAT APPELLANT’S USE OF MARIJUANA
WAS
WRONGFUL.

Because
of our resolution of Issues II and III, we need not reach Issue I.

2
Although this issue was not reached by the Air Force court in this
case, it has
found on two previous occasions that giving this instruction
constitutes
error. SeeUnited States v. Fuller,
No. ACM 35058 2004 CCA Lexis 182, at *11-*16, 2004 WL 1539559 at *4-*6.(A.F. Ct. Crim. App. June 23, 2004)(unpublished
opinion); United
States v. Voda, No. ACM 35337, 2004 CCA Lexis 29, at *5-*10, 2004
WL 190265
at *2-*3 (A.F. Ct. Crim. App. Jan. 26, 2004)(unpublished
opinion).

CRAWFORD,
Judge (dissenting):

I
respectfully dissent from the majority’s analysis and disposition of
both
issues. As to Issue II, the majority finds a violation of due
process
because Appellant was not allowed to introduce specific acts of good
character
to rebut a permissive inference of knowing use of marijuana, despite
Appellant’s own failure to take advantage of the Military Rules of
Evidence and
our decisions to introduce highly similar evidence under the “good
soldier
defense.”

As
to Issue III, I
respectfully dissent because the majority implicitly overrules the
provisions
of the Manual for Courts-Martial, United States (2002 ed.)
(MCM), concerning modes of proof and fails properly to consider
the
plain error doctrine.

ISSUE
II

FACTS

Appellant
was randomly selected to give a urine sample, which tested positive for
the use
of marijuana. Based on this positive test result, the Government
obtained
a search authorization to seize hair samples from Appellant, which also
tested
positive. The Government expert testified that Appellant “had
ingested
[marijuana] on multiple occasions. . . .” In the expert’s
opinion,
Appellant had used marijuana at least thirty times over a twelve-month
period
preceding the seizing of the hair samples.

Appellant
asserts that these readings were the result of passive inhalation,
possibly
from individuals who were, unbeknownst to him, smoking marijuana at his
house
and sprinkling his food with marijuana. To support his unknowing,
unwitting, passive inhalation or ingestion, the Appellant sought to
call four
witnesses who did not live with him to testify that they had not
specifically
seen Appellant using drugs. Even though Appellant failed to take
advantage of our relaxed character evidence rules, the majority holds
there was
a violation of due process. United States v. Brewer, 61 M.J. __, __ (3, 12) (C.A.A.F.
2005).

DISCUSSION

The Due
Process Clause “‘require[s] that only the
most basic
procedural safeguards be observed. . . .’” Medina
v. California, 505 U.S. 437, 453 (1992). “[B]eyond the specific
guarantees
enumerated in the Bill of Rights, the Due Process Clause has limited
operation.” Dowling v. United
States, 493 U.S.
342, 352 (1990):

The Bill
of Rights speaks in
explicit terms to many aspects of criminal procedure, and the expansion
of
those constitutional guarantees under the open-ended rubric of the Due
Process
Clause invites undue interference with both considered legislative
judgments
and the careful balance that the Constitution strikes between liberty
and
order.

Medina,
505 U.S.
at
443. Importantly, the Supreme Court in Dowling emphasized
that
“[j]udges are not free, in defining ‘due process,’” to impose on law
enforcement officials “[their] ‘personal and private notions’ of fairness. . . .” Dowling, 493 U.S.
at 353 (quoting United States v. Lovasco, 431 U.S.
783, 790 (1977)). If the Rules of Evidence are to be ferreted out
and
made by judges under the cloak of the Due Process Clause, the law of
evidence
will be inaccessible to those in the field. “Making evidence law
accessible is the main reason for the code that has become the most
influential
body of the American evidence law -- the Federal Rules of
Evidence.” Christopher B. Mueller &
Laird C. Kirkpatrick, Modern
Evidence, Doctrine and Practice § 1.2, at 4 (1995).See
alsoHearings on the Proposed Rules of Evidence before
Special
Subcommittee on Reform of Federal Criminal Laws of the Committee on the
Judiciary,
House of Representatives, 93d Cong. 90 (1973)(testimony of Albert
Jenner
Jr.)(“[T]he administration of justice in the federal courts is
suffering
seriously. A major factor in this regard is the maelstrom of
rules of
evidence which must be presently ferreted out and applied by federal
judges.”).

The
Military Rules of Evidence (M.R.E.) are “applicable in courts-martial .
. .” M.R.E. 101. The rules
governing admission of
character evidence are set forth in M.R.E. 404, 405, and 608.
These rules
have been interpreted very expansively by this Court:

The broad
availability of the good
soldier defense is supported by many legal doctrines and policy
arguments, but
none withstand close analysis. Cloaked in the mantle of
longstanding
court-martial tradition, justified by doctrines of questionable
salience, and
preserved by judges resistant to the Military Rules of Evidence’s
limitations
on character evidence, the good soldier defense advances the perception
that
one of the privileges of high rank and long service is immunity from
conviction
at court-martial. The defense privileges a certain type of
accused
servicemember -- a person of high rank and reputation in the military
community
-- at the expense of the overall fairness of the court-martial system.

Elizabeth
Lutes Hillman, Note, The “Good
Soldier”
Defense: Character Evidence and Military Rank at Courts-Martial,
108
Yale L.J. 879, 881 (1999). Even so, the defendant did not take
advantage
of these rules by introducing evidence of law-abidingness or by
presenting a
good soldier defense.

However
broadly read and applied, none of these rules permits evidence of
specific acts
of good character pertinent to the character trait Appellant wished to
prove. Unable to rely on any character evidence rule, the
majority relies
on the “relevance” of such evidence as an independent basis for
admissibility
of character evidence prohibited by other rules. Setting aside
for the
moment that relevance alone is not a cognizable category of character
evidence,
a hypothetical demonstrates the fallacy of the majority’s reliance on
relevance
at all. Assume a defendant is charged with vandalism of a car on June 1, 2004, at 11:00 p.m. Also assume, to
disprove the vandalism, he
offers a witness to testify that the witness walked down the street
where the
car was located at 9:00 p.m.
and did
not see the defendant. Any court would exclude that evidence as
being
irrelevant unless other evidence made it relevant.1
Certainly, whether he was on the block at 11:00 p.m. on June 1 would be evidence of
“consequence to the
determination of the action,” but that he was not seen there at 9:00 p.m. does not measurably reduce
the
likelihood that he was there at 11:00
p.m.,
unless some other evidence establishes that likelihood.

The
majority would
like to hold the opposite. Like Federal Rule of Evidence (Fed. R.
Evid.)
405(b), M.R.E. 405(b) prohibits the introduction of specific instances
of
conduct unless “character or trait of character of a person is an
essential
element of an offense or defense. . . .” Character is an issue in
criminal cases when the defense of entrapment is raised or a character
for
truthfulness is an essential element of the defense. In civil
actions, specific
instances are admissible when there has been a negligent entrustment,
defamation, or liable actions. None of those applies in this case.

The
drafters of the rules recognized that inferences from past behavior
would be
important, but excluded such proof under Fed. R. Evid. 405(a) (the
model for
M.R.E. 405(a)) reasoning that “[O]f the three methods of proving
character
provided by the rule, evidence of specific instances of conduct is the
most
convincing.” At the same time it possesses the greatest capacity
to
arouse prejudice, to confuse, to surprise and to consume time.” Fed. R. Evid. 405, Notes of
Advisory
Committee on Rules. Here, as indicated, the specific
instances do
not cover the relevant around-the-clock time period, nor could
they.

Thus,
I respectfully
dissent from the further expansion of character evidence rules.

ISSUE III

FACTS

During the
preliminary instructions before voir dire, the military judge stated,
“The
accused is presumed to be innocent of the offense. The Government
has the
burden of proving the accused’s guilt by legal and competent evidence
beyond a
reasonable doubt.” Under oath, all of the members agreed with the
rule of
law that the accused “is presumed to be innocent until his guilt is
established
by legal and competent evidence beyond a reasonable doubt.” All
of the
members agreed to find the accused not guilty unless they were
“convinced
beyond a reasonable doubt . . .” of his guilt. They also agreed
that the
burden of proof to establish the accused’s guilt rests solely upon the
prosecution, that the burden never shifts to the defense to establish
the
accused’s innocence, and that the defense has no obligation to present
any
evidence or to disprove the elements of the offense. The members
also
recognized the distinction between “knowing ingestion of marijuana” and
“using
marijuana unknowingly, which is not a crime.”

The
military judge instructed the courtmembers:

Knowledge
of the presence of the controlled
substance is a required component of use. Knowledge of the
presence of
the controlled substance may be inferred from the presence of the
controlled
substancein the accused’s body or from other circumstantial
evidence.
This permissive inference may be legally sufficient to satisfy
the
government’s burden of proof as to knowledge.

To be
punishableunder Article 112a,
use of a controlled substance must be wrongful. Use of a
controlled
substance is wrongful if it is without legaljustification or
authorization.

Use of a controlled
substance is not
wrongful if such act or acts are: (a) done pursuant to legitimate
law
enforcement activities (for example, an informant who is forced to
use
drugs as part of an undercover operation to keep from being discovered
is not
guilty of wrongful use); (b) done by authorized personnel in the
performance
of medical duties or experiments; or (c) done without knowledge
of the
contraband nature of the substance (for example, a person who uses
marijuana, but actually believes it to be a lawful cigarette or
cigar,
is not guilty of wrongful use of marijuana).

Use of a
controlled substance may be
inferred to be wrongful in the absence of evidence to the contrary.
However, the drawing of this inference is not required.

The burden of going forward with
evidence with
respect to any such exception in a court-martial shall be upon the
person
claiming its benefit.

If such an issue is raised by the
evidence
presented, then the burden of proof is upon the United States to establish that the use was wrongful.

Knowledge by
the accused
of the presence of the substance and knowledge of its contraband nature
may be
inferred from the surrounding circumstances. However, the drawing of
any
inference is not required.

Emphasis
added.

Later, he instructed
the members:

You are
further advised, first,
that the accused is presumed to be innocent until his guilt is
established by
legal and competent evidence beyond a reasonable doubt; . . . the
burden of
proof to establish the guilt of the accused beyond a reasonable doubt
is on the
government. The burden never shifts to the accused to establish
innocence
or to disprove the facts necessary to establish each element of the
offense.

There was
no objection to these instructions. The italicized portions of
the
military judge’s instructions were taken verbatim from the Manual
for
Courts-Martial United States (2000 ed.)
(MCM),
pt. IV, ¶ 37c(5). The instruction
from the Military
Judges’ Benchbook is as follows:

To be punishable under Article 112a, use of a
controlled substance must be wrongful. Use of a controlled
substance is
wrongful if it is without legal justification or authorization.
(Use of a
controlled substance is not wrongful if such act or acts are: (a) done
pursuant
to legitimate law enforcement activities (for example, an informant who
is
forced to use drugs as part of an undercover operation to keep from
being
discovered is not guilty of wrongful use); or (b) done by authorized
personnel
in the performance of medical duties or experiments.)

Knowledge
by the accused of the
presence of the substance and knowledge of its contraband nature may be
inferred from the surrounding circumstances (including but not limited
to
_________________). (You may infer from the presence of
(________________) in the accused’s urine that the accused knew (he)(she) used (_________________).) However,
the drawing
of any inference is not required.

Use of a controlled substance may be inferred to be
wrongful in
the absence of evidence to the contrary. However, the drawing of
this
inference is not required.

Defense
Argument. Appellant argues it was error to instruct
the members
using the portion of the instruction highlighted above, because it
created a
“mandatory rebuttable presumption” that the Appellant’s use of
marijuana was
wrongful. He contends that “[a] reasonable court member could
have
interpreted the instruction as relieving the government of its burden
of
persuasion on the wrongfulness element and shifting that burden
entirely to the
appellant.” Thus a court member could have understood that “the
government had no burden of any kind on the element of wrongfulness. .
. .”

Government
Argument. The Government argues the military judge’s
instruction did not explicitly create a mandatory rebuttable
presumption,
because it did not direct the members to presume the use of marijuana
was
wrongful. To the contrary, the instruction properly allowed the
members
to infer the use was wrongful, but noted that the inference was not
required.

DISCUSSION

There was no error. The prosecution is entitled to rely
“‘on a
permissive inference of wrongfulness, which has long been recognized by
military law as flowing from proof of the predicate fact of use of’ the
drug.” United States v. Ford, 23 M.J. 331, 333 (C.M.A.
1987)(citing United States v. Harper,
22 M.J. 157, 162
(C.M.A. 1986)). See alsoUnited
States
v. Pabon, 42 M.J. 404, 406 (C.A.A.F. 1995).

The
Supreme Court has stated that “[i]nferences and presumptions are a
staple of
our adversary system of fact-finding. It is often necessary for
the trier
of fact to determine the existence of an element of the crime -- that
is, an
‘ultimate’ or ‘elemental’ fact -- from the existence of one or more
‘evidentiary’ or ‘basic’facts.” CountyCourtofUlsterCounty v. Allen,442 U.S.
140, 156 (1979). The inferences and presumptions do not
necessarily deprive an accused of his dueprocess rights.
Id.
“[I]n criminal cases, the ultimate testof any device’s
constitutional validity in a given case remains constant: the device
must notundermine the factfinder’s responsibility at trial, based on
evidence
adduced by the State, to find the ultimate facts beyond a reasonabledoubt.”
Id.; see alsoIn
re Winship, 397 U.S.
358, 364 (1970).

Who creates presumptions and inferences. As
Justice Powell noted, presumptions may be created by legislative bodies
or
based on “common sense, and experience. . . .” Allen,
442 U.S. at 172 (Powell,
J., dissenting).
The President has the authority to create
presumptions and inferences under Article 36, Uniform Code of Military
Justice
(UCMJ), 10 U.S.C. § 836 (2000). Unless prohibited by controlling
law to
the contrary, in matters of procedure, the President has the authority
to place
either or both the burden of production and persuasion on the defense
and has
done so in appropriate provisions of the MCM. As noted,
the
italicized instructions given in this case were taken verbatim from the
MCM.
Further, those same benchbook instructions, taken substantially
verbatim from
the MCM, have been used in hundreds of cases.

The courts have uniformly upheld the
assignment of
the initial burden to the defense as to duress, necessity, and mental
responsibility. In fact, as to this latter issue, the MCM
places
upon the defense not only the burden to rebut a presumption of sanity
but the
requirement to do so by clear and convincing evidence.2
Many special or affirmative defenses entail shifts of burdens and
permissible
inferences, e.g., entrapment and duress.

All that said, what this case entails
is a
permissive inference, permitted by the Supreme Court, our case law, the
President, and common sense. As to inferences and presumptions,
the
Supreme Court said:

The
most common evidentiary device
is the entirely permissive inference or presumption, which allows --
but does
not require -- the trier of fact to infer the elemental fact from proof
by the
prosecutor of the basic one and which places no burden of any kind on
the
defendant. In that situation the basic fact may constitute prima
facie
evidence of the elemental fact. When reviewing this type of
device, the
Court has required the party challenging it to demonstrate its
invalidity as
applied to him. Because this permissive presumption leaves the
trier of
fact free to credit or reject the inference and does not shift the
burden of
proof, it affects the application of the “beyond a reasonable doubt”
standard
only if, under the facts of the case, there is no rational way the
trier could
make the connection permitted by the inference. For only in that
situation is there any risk that an explanation of the permissible
inference to
a jury, or its use by a jury, has caused the presumptively rational
factfinder
to make an erroneous factual determination.

Allen, 442 U.S. at 157 (internal
citations
omitted).

Mandatory
presumption vs. permissible inference.
A mandatory presumption tells the trier of fact that he, she, or they must
find the elemental fact upon proof of the basic fact, unless thedefendant
has come forward with some evidence to rebut the presumed connection
between
the two facts.Id.
The Supreme Court noted a class of quasi-mandatory presumptions
“that
merely shift the burden of production to the defendant, following the
satisfaction of which the ultimate burden of persuasion returns to the
prosecution; and presumptions that entirely shift the burden of proof
to the
defendant.” Id.at 160,n.16.
The Court
stated, “To the extent that a presumption imposes an extremely low
burden of
production -- e.g., being satisfied by ‘any’ evidence -- it may well be
that
its impact is no greater than that of a permissive inference, and it maybe
proper to analyze it as such.” Id.;
see alsoMullaney v. Wilbur, 421
U.S. 684, 702 n.31(1975).

In drug cases such as Appellant’s, members are allowed to infer
wrongful use.
This entirely permissive inference allows, but does not require,
the
trier of fact to infer the elemental fact (wrongfulness) from proof by
the
evidence of the basic fact (presence of the drug’s metabolite in one’s
system),
but places no burden of any kind on the defendant. In other
words, even
if the defendant were to introduce no evidence whatsoever, the members
would be
absolutely free to reject the permissive inference, find that the
Government
had not proved wrongful use, and acquit. Allen, 442 U.S.
at 157.

The key issue
in this case
was a sub-element of wrongfulness, i.e., whether there was knowing use
of a
controlled substance by Appellant. Unlike the case in which a
single use
of marijuana is alleged to have occurred when an accused accidentally
ate the
wrong brownie at a party, the evidence of knowing, multiple usage
by Appellant is overwhelming. Under these circumstances,
instructing on
the existence of a permissive inference of wrongfulness is nothing more
than a
reminder to the members that they need not check their common sense at
the door
to the deliberation room.

Initial
allocation. Contrary to Appellant’s argument, the
military
judge was explicit in his instruction that the burden of proving
wrongfulness
was on the Government, and that even if the
defense produced evidence to
support an unknowing or
otherwise lawful use, the burden of proving wrongfulness, beyond a
reasonable
doubt, remained with the Government. The burden of proof, with
regard to
innocence, never shifted to Appellant, nor did the military judge,
through his
instructions, create a rebuttable presumption of guilt. The
instructions
explained the element of wrongfulness, that the members could infer
wrongfulness, if they chose, and that in determining whether to make
that
inference, the members should consider evidence that could establish an
exception
to what might otherwise be a wrongful use. He also instructed the
members: “The burden of going forward with evidence with respect
to any
such exception in any court-martial shall be upon the person claiming
its
benefit.”

Fuller.In arguing that his case is similarly situated to United
States v. Fuller, No. ACM 35058, 2004 CCA LEXIS 182, at
*11-*16,
2004 WL 1539559 at *4-*6 (A.F. Ct. Crim. App. June 23,
2004)(unpublished
opinion), Appellant fails to consider all the instructions given by the
military judge in this case, particularly those on knowledge, innocent
ingestion, and unknowing ingestion. The military judge
appropriately
tailored the standard instructions by including and highlighting the
evidence
raised by the defense. Finally, the military judge concluded his
instructions by once again reminding the members that the “burden is on
the
prosecution to establish the guilt of the accused.”

Plain
error. Even if there were error, it was not
plain. There
was no objection by the defense in this case. R.C.M.
920(f). In fact, during the Article 39(a), UCMJ, session
on the
instruction, there was a discussion of these instructions and neither
side
commented upon it. In Johnson
v. United States, the Supreme Court stated:

[B]efore
an appellate court can correct an error not raised at trial, there must
be (1)
“error,” (2) that is “plain,” and (3) that “affects substantial
rights.”
If all three conditions are met, an appellate court may then exercise
its
discretion to notice a forfeited error, but only if (4) the error
“‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’”

There is no difference between
“affect[s]
substantial rights” and a “material[]
prejudice[] [of]
substantial rights” under Article 59(a), UCMJ, 10 U.S.C. §
859(a)(2000). SeeUnited States v. Kho, 54 M.J. 63, 66 (C.A.A.F. 2000)(Crawford,
C.J., concurring in the result). Even if there were error
and it
was plain, it did not “affect substantial rights” or “seriously affect
the
fairness, integrity, or public reputation of the judicial
proceedings.” Johnson,
520 U.S.
at
467. In this case,there was
testimony thatthe Department of
Defense cutoff level for confirmation for the marijuana metabolite
(THC) in
urine is fifteen nanograms per milliliter. Appellant’s urinalysis
sample,
given on August 7, 2000,
tested positive for THC in the amount of 97.89 nanograms per
milliliter.
The testimony added that because the human body metabolizes
marijuana
rapidly, an individual will usually test positive for THC for only
three days
after one recreational use. Therefore, the prosecution’s theory
at trial
was that Appellant ingested drugs a few days before his urinalysis.

The
prosecution
also presented the results of Appellant’s hair analysis to support its
theory
that Appellant had used marijuana on divers
occasions
during the charged timeframe. The testing involved
dividing
hair segments taken from Appellant. As each segment
represented
approximately twelve months of growth, the hair analysis would suggest
a rough
idea of Appellant’s drug use for the twelve months prior to October 5, 2000, the day the
hair
sample was taken.

THC
cannot be
found in hair unless the body actually metabolizes marijuana. The
metabolite for marijuana in the hair is a strong indicator that the
individual
used marijuana, as it is virtually impossible for THC to enter the hair
if the
body has not metabolized the drug. Furthermore,expert
testimony
established that the person whose hair was tested in this case had
ingested THC
on multiple occasions in the timeperiod.

Appellant’s
hair
certainly tested positive for marijuana, as did his urine.
Appellant did
not attack the lab testing procedures, only the interpretation of the
results. In the expert’s opinion, based on the hair analysis
alone,
Appellant had used at least thirty recreational doses of marijuana for
the
twelve months preceding the date the hair
sample was
provided.

CONCLUSION

Any
rational
court-martial panel would have been convinced beyond a reasonable doubt
that
Appellant knowingly and wrongfully used marijuana, even had all of
Appellant’s
witnesses testified, and without any instruction on the permissive
inference.
The numbers from the hair testing alone speak for themselves.
The
defense evidence attempting to establish possible innocent
ingestion and
passive inhalation were simply unbelievable. There was also
evidence of
Appellant’s negative reactions during the search process.

The
trial counsel
did not rely on the allegedly erroneous instructions
or even refer to them in his closing argument. Trial
counsel summed
up the theme of his argument by telling the members:

Convinced beyond a reasonable doubt.
And in this case, it is absolutely there. It is absolutely in
front of
you. There is no reasonable hypothesis. The one presented
by the
defense is absolutely not reasonable. There is no other one.
We
have excluded all reasonable hypotheses to explain his situation.

During
closing
argument, defense counsel made certain the members understood the
correct
standard to apply. Defense counsel argued:

The
standard you must apply is whether
any reasonable doubt exists as to whether Master Sergeant Brewer
knowingly and
wrongfully used marijuana. . . .

You know,
someone may feel that,
“Well, I think he probably did it,” or, “He didn’t prove that the urine
and hair tests
-- he didn’t make any positive proof that the urine and hair tests were
wrong.”
Well, that is not the standard. . . .

Master
Sergeant Brewer, according to
the Judge’s instructions which you are going to hear, doesn’t have to
prove
anything. The burden also rests with the government.

Defense counsel went on
to argue,
“[w]e don’t have to present any alternative theory. The
Government has to
present the scenario that it must hold true beyond a reasonable doubt.”

Additionally,
once
both sides presented their findings arguments, the military judge
instructed
the members that “the burden of proof to establish the guilt of the
accused
beyond a reasonable doubt is on the government. The burden never
shifts
to the accused to establish his innocence or to disprove the facts
necessary to
establish eachelement of the offense.”

Under
these
circumstances, it is clear beyond a reasonable doubt that the
instructions at
issue were not erroneous and, even if they were, they did not unfairly
prejudice Appellant. Irrespective of the instructions, the
expert
testimony established beyond a reasonable doubt that Appellant used
marijuana
on multiple occasions. Even if all of Appellant’s evidence had
been
admitted, the overwhelming strength of the Government’s case and the
comparative
weakness of Appellant’s “alibi,” “character,” or “inference defeating”
evidence
lead me to conclude, beyond a reasonable doubt, that the trial results
would
have been the same. United States v.
Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

Thus, I respectfully dissent from the majority’s expansion of the
Military
Rules of Evidence under the Due Process Clause, from its failure to
consider
the instructions of the military judge in the context of the entire
case, and
from its rejection of the modes of proof promulgated by the President.

FOOTNOTES:

1See,
e.g., M.R.E. 104(b).

2 Rule
for Courts-Martial (R.C.M.) 916(k)(3)(A).

BAKER,
Judge
(dissenting):

I
agree with the
majority that the testimony of these witnesses was not admissible under
Military
Rule of Evidence (M.R.E.) 405(b). And, I share the majority’s
general
view that where the Government is allowed a permissive inference of
wrongdoing
from a drug test, an accused should be allowed some leeway in
presenting a
defense to counter the inference, especially where the Government is
free to
charge divers occasions, leaving the accused to defend every minute of
every
day or every week rather than address a specific act or date.
And, in the
drug test context, there is something symmetrical (and therefore
seemingly
fair) about an accused balancing the Government’s permissive inference
with a
permissive inference of his own that permits him to argue that if
Witness A did
not see drug activity on Tuesday then there must not have been drug
activity on
Tuesday night.

The Exclusion of the
Four
Defense Witnesses

The
question in this case, however, is not whether the military judge might
have
permitted Appellant’s “exculpatory witness” testimony on a lenient
theory of
relevance, but whether the military judge abused his discretion when he
did not
do so. For the reasons stated below, the military judge did not
abuse his
discretion when he excluded the testimony of three of the four
witnesses.
With respect to the fourth witness, whose testimony was improperly
excluded,
the error was harmless.

As
recounted in
the majority opinion, four military witnesses would have testified on
behalf of
Appellant that they were with him and observed his behavior for much of
the
relevant time frame, and that if the accused had used marijuana they
would
likely have seen some evidence of it. Three witnesses worked with
Appellant, one as his supervisor and two as his co-workers. They
would
have testified to their observations of Appellant during the daytime
hours of
the work week, stating that they had never seen evidence of drug use on
the
part of the Appellant. The fourth witness, Appellant’s close
friend and a
former Air Force staff sergeant, working as a civilian at Appellant’s
duty
station at the time, was prepared to testify that he spent significant
time
with Appellant every weekend and that while he never saw Appellant use
drugs or
observed him under the influence of drugs, he had observed Appellant’s
nephew
under the influence of marijuana.

According
to
defense counsel, such witnesses would have helped to “build our wall of
proof
one brick at a time.” Trial defense counsel argued for the
admissibility
of these witnesses’ statements by claiming, “as long as each brick is
part of
our wall, it is relevant.” The military judge ultimately granted
the
Government’s motion to exclude this testimony.

It
is undisputed
that an accused has a constitutional right to present relevant evidence
to
defend against the charges. That right, however, is not absolute.
United
States
v.Browning,
54 M.J. 1, 9 (C.A.A.F. 2000).
The burden is on the proponent of the evidence to show admissibility.
United
States
v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996).
“‘Relevant evidence’ means evidence having any tendency to make
the existence
of any fact that is of consequence to the determination of the action
more
probable or less probable than it would be without the evidence.”
M.R.E. 401. Relevant evidence may
be excluded, if “its probative value is substantially outweighed by the
danger
of unfair prejudice . . . .” M.R.E. 403.
If the military judge weighs the evidence and excludes it, “‘appellant
has the
burden of going forward with conclusive argument that the judge abused
his
discretion.’” Shover, 45 M.J. at 122 (quoting United
States v.
Mukes, 18 M.J. 358, 359 (C.M.A. 1984)). We will not reverse
the
military judge’s decision unless appellant persuades us that there was
a
“‘clear abuse of discretion.’” Browning, 54 M.J. 1, 9
(C.A.A.F.
2000)(quoting United States v. Johnson,
46 M.J. 8, 10 (C.A.A.F. 1997)).

The
problem with
Appellant’s theory of admissibility is that three of the four witness
statements were not relevant to the issue of Appellant’s innocent
ingestion of
drugs.

Appellant
did not
contest that he had ingested drugs. The Government offered the
results of
a urinalysis and hair spectrum analysis on this point, and the results
were
undisputed. Appellant did not take the stand himself, but he did
defend
on the grounds that he had innocently ingested the drugs, and that the
innocent
ingestion was more than likely the result of his exposure to his
nephew’s and
his nephew’s friend’s illegal conduct in his house while Appellant was
off-duty. In the words of his civilian defense counsel:

In September
of 2000,
Master Sergeant Brewer learned that his random urine sample had tested
positive
. . . .

. . . .

Master
Sergeant
Brewer, when learning of his sample, sat in the OSI office stunned,
trying to
figure out why did this come back positive? “Why was my sample positive
for
marijuana?”

Fortunately,
in the
intervening months, Master Sergeant Brewer has been able to find
out what
likely caused his sample to come back positive.

Now, following
the
chronology of this, when Master Sergeant Brewer came home that day, he
spoke to
his 20 year old nephew, Antron Harris –- he is called Tron for short -–
about
what had happened. And the next day, Tron suddenly moves out of that
house. But Master Sergeant Brewer, at that time, didn’t
connect the
events at all.

. . . .

Over the next
six or
eight months, he spends a lot of time trying to figure out the answer
to this
question. He is discussing it with various people, researching it, and
during
one discussion, one unlikely discussion, he learns that Black ‘n Milds,
Black
‘n Milds cigars, the kids will frequently unroll the tobacco from Black
‘n Mild
cigars and Philly blunt cigars, cheap cigars that you can get at the
7-11, and
fill them back up with marijuana so the cigar tobacco and the marijuana
tobacco
are together in the cigar and smoke that as a way of delivering
marijuana to
the body.

And he recalls
-– this
is when it starts to click –- that Tron, his nephew, smoked Black ‘n
Mild
cigars. He is unable to get a hold of Tron. He also starts thinking
about one of
the kids, Tron’s friend, who frequently was at the house that summer
with Tron,
basically his only friend in the area, a kid named D.J. And that
kid was
– kind of patterned his style, so to speak, after a rapper called –- a
rap star
called Eminem. . . .

But in
connecting this
and starting to think about this, he is thinking about, “Did Tron and
D.J.
bring marijuana into my house?” And he can’t get a hold of Tron .
. . .
But he remembers where D.J. works. He goes to D.J.’s work and he
confronts
him. Bingo.

. . . .

Not only
did they
smoke marijuana, but they ate marijuana. D.J. specifically
recalls on one
occasion, they put marijuana in some spaghetti sauce and ate it to get
high. And that was at the house -– Master Sergeant Brewer’s house.

The sauce
was kept
in Master Sergeant Brewer’s refrigerator like any other food, and it’s
probable
that by eating this sauce that Tron had spiked with marijuana, Master
Sergeant
Brewer tested positive for marijuana.

. . . .

There is no
dispute
about the science in this case. . . .

The reason we
agree
with the scientific expert -– substantially agree -- is that the
conclusions
that he reaches, the science in this case, the hair and urine testing,
are not
inconsistent with the scenario I described above. If Master
Sergeant
Brewer had unknowingly ingested marijuana by eating spaghetti sauce
during the
summer containing a drug, it’s not likely that he would have felt
intoxicated.

But he likely
would
have tested positive on the urinalysis within a reasonable time after
that. Moreover, if he ate it more than once, and many people will
eat
spaghetti as leftovers et cetera, it is also not inconsistent that his
hair
would test positive, his pubic hair, two months later, even twelve
months
later.

Emphasis added.

Subsequently,
Appellant offered, and the military judge permitted, the testimony of
his
nephew’s friend, who admitted to smoking marijuana in the house and
making food
laced with the drug. However, three of the four excluded
witnesses could
only testify to Appellant’s conduct at work during duty hours.
They were
not competent to testify to Appellant’s nephew’s conduct or Appellant’s
appearance or activities while outside the workplace. Therefore,
it is
not evident as to which fact of consequence their proffered testimony
would
have addressed.

Specifically,
it
is not evident how their testimony would have made it more or less
probable
that Appellant’s acknowledged drug ingestion at home, the place where
he
claimed the ingestion had occurred, was innocent or wrongful.
These
witnesses did not see it. These witnesses did not speak about it
with
Appellant. And the proffer made no suggestion that these
witnesses were
competent to testify regarding the conditions, practices, or behaviors
in Appellant’s
house.

With
respect to
the fourth excluded witness who intended to testify about Appellant’s
off-duty
activities and the suspected drug use of Appellant’s nephew, his
testimony was
improperly excluded. He would have provided evidence relevant to
Appellant’s claim of innocently ingesting marijuana that had been
brought into
the house by his nephew. However, unlike the majority, I cannot
determine
that this error was a constitutional violation of Appellant’s due
process right
to defend against the charges against him.

The
right to offer
the testimony of witnesses is in plain terms the right to present a
defense and
the right to present the defendant’s version of the facts. Washington v.
Texas,
388 U.S.
14, 18 (1967). Just as an accused
has the right to confront the prosecution's witnesses and challenge
their
testimony, he has the right to present his own witnesses to establish
his
defense. Id. at 19. This right, rooted in the
Sixth
Amendment, is a fundamental element of due process.

In
this case, the Appellant was able to present his defense of innocent
ingestion. Though the Appellant never took the stand, his fiancée
and a
friend of his nephew both testified on his behalf, each asserting that
they had
never witnessed the Appellant using drugs. Additionally, the
nephew’s
friend testified at length about marijuana that was smoked in
Appellant’s
basement and food that was prepared at Appellant’s house that contained
marijuana and possibly served to Appellant without his knowledge.
While
the excluded testimony of the fourth witness might have bolstered that
defense,
the omission did not deprive Appellant of his right to
present it.

When
examining an
error that is nonconstitutional in nature, we seek to determine whether
the
error was harmless, not whether it was harmless beyond a reasonable
doubt. United
States v. Pollard, 38 M.J. 41,
51-52 (C.M.A. 1993). The
test for nonconstitutional error is whether the error had a substantial
influence on the findings. Kotteakos v. United States,
328 U.S.
750, 765 (1946). Thus, if
we conclude that the error substantially influenced the findings, or if
we are
“left in grave doubt” whether the findings were so influenced, we must
reverse.
Id.
In
light of the evidence presented by the Government to rebut Appellant’s
theory
of innocent ingestion, we can conclude that the exclusion of this
witness’
testimony did not substantially influence the guilty findings.

To
counter the
Appellant’s argument that he had ingested marijuana unknowingly by
passively
inhaling the smoke caused by his nephew’s drug use in the basement, the
Government presented extensive testimony from Dr. Carl Selavka.
Dr.
Selavka, the Director of the Massachusetts State Police Crime
Laboratory and a
forensic chemist and toxicologist, testified at length about passive
inhalation
studies that had been performed with known subjects who did not have
prior
marijuana in their systems. These studies sought to determine the
likelihood of passive inhalation giving rise to positive findings in
blood and
urine samples. Dr. Selavka stated that such studies demonstrated
that the
less smoke is ingested and inhaled, the less metabolite will be
detected in an
individual’s biological tissues. Specifically, he detailed a
study in
which individuals were exposed to the second hand smoke from four
marijuana
cigarettes in a very small, closed environment for one hour at a time
every day
for six days. The individuals, according to the study, did not
test
positive for the Department of Defense cutoff after such exposure.

Likewise,
Dr.
Selavka testified, when asked about the likelihood of the Appellant
testing
positive for marijuana use after ingesting pasta sauce laced with the
drug: “In the absence of other ingestions, there is just not
enough
ingestion of the THC over the time period represented by the hair to
logically
give rise to the positive finding from the spaghetti sauce scenario
itself.” This testimony would have led the members to question
Appellant’s theory by bringing to their attention that there were
studies that
demonstrated that his explanations for his positive drug tests simply
were not
plausible. Further, it is unlikely that any testimony from the
excluded
witness about the nephew’s drug use in the house would have negated Dr.
Selavka’s testimony or persuaded the members that Appellant’s possible
exposure
to the drug was somehow distinguishable from the exposure of the
individuals
who participated in the study.

Additionally, the excluded testimony of the fourth witness would have
directly
contradicted evidence presented by the Appellant’s fiancée on the issue
of drug
use in their home. Specifically, she testified that she and the
Appellant
would not allow drugs to be used in their home. When questioned
about
whether she knew that Appellant’s nephew and his friend may have been
using
drugs in the basement, she responded: “I was never aware of it,
but we
were very strict about -– we didn’t allow anything like that in our
house. But I never knew of it. He never did it in front of
me.” She further stated that in the two years she lived in the
home with
Appellant, she never smelled anything or saw anything that would have
lead her
to believe that any marijuana use was occurring in their home,
specifically in
the basement.

The fourth
witness would have testified that he noticed the smell of marijuana on
Appellant’s
nephew and his friend and that he observed them under the influence of
the drug
in the home. “I saw there [sic] eyes were red or squinting which
I
observed in others who were high on marijuana.” He also would
have
testified that he observed them in possession of drug
paraphernalia. “I
saw that they had Black and Mild cigars which are commonly used by
young people
to smoke marijuana.” If this witness had been found credible by
the
members, it is likely that his observations about the nephew’s drug use
in the
house would have undercut Appellant’s fiancée’s claim that they were
very
strict about marijuana not being allowed in the house and that there
were no
signs of it ever being present in the house, thus weakening his defense.

For these
reasons, I do not believe the military judge abused his discretion with
respect
to three of the witnesses and with respect to the fourth, who was
erroneously
excluded, I believe that error was harmless. Accordingly, I
respectfully
dissent on Issue II.

The Military Judge’s
Instruction

I
also
respectfully dissent from the majority’s conclusion on Issue III.
To be
sure, the instruction at issue is no model of clarity. It is
confusing,
even to lawyers -- or particularly to lawyers -- who can dissect the
text and
legitimately parse alternative meaning from almost every word and
phrase.
For example, when read in isolation from the remainder of the
instructions, the
military judge’s statement, “If such an issue [an exception to wrongful
use] is
raised by the evidence presented, then the burden is on the United
States to establish that the use was
wrongful” is problematic. Emphasis added. Of course, the
burden of
proof is always on the United States
to establish that use was wrongful, but the use of the word “then”
suggests
this might not always be the case.

However,
the
question in this case is whether there was plain and obvious
instructional
error. This is not a case where the defense counsel objected and
proposed
alternative language. Nor is this case resolved by asking whether
the
instruction could be improved. That is plain and obvious.
Among
other things, plain English would improve the instruction. If
confusion
alone was the standard for plain error, then plain instructional error
would occur
with cascading regularity.

Based
on the
totality of the instructions provided by the military judge in the
specific
context of this case, I do not believe there was plain error. The
one
part of the military judge’s instructions that was unequivocally clear,
and repetitive,
was the part concerning his instructions that the Government never
relinquished
its burden to prove all the elements beyond a reasonable doubt.
Thus, at
the outset of his instructions the military judge stated: “The
burden is
on the prosecution to establish the guilt of the accused.” And at
the
close of his instructions the military judge stated:

You are
further advised, first, that
the accused is presumed to be innocent until his guilt is established
by legal
and competent evidence beyond a reasonable doubt . . . . And lastly,
the burden
of proof to establish the guilt of the accused beyond a reasonable
doubt is on
the government. The burden never shifts to the accused to
establish
innocence or to disprove the facts necessary to establish each element
of the
offense.

These instructions were
not
confusing, nor did they address obscure points of law. Further,
these
instructions bracketing the military judge’s instructional packet
echoed the
ingrained and basic understanding members would already have regarding
the
Government’s burden of proof. As a result, I do not think it is
plain or
obvious that the confusing language cited above and in the lead opinion
would
cause reasonable members to otherwise think the burden of proof was on
the Appellant
rather than the Government.

Based
on the
foregoing, I would affirm the decision of the United States Air Force
Court of
Criminal Appeals.